Danher and National Disability Insurance Agency - [2021] AATA 332

Danher and National Disability Insurance Agency [2021] AATA 332 (2 March 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/5278
Re:Liam Danher
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President F Meagher
Date:2 March 2021
Place:Brisbane
INTERLOCUTORY DECISION

The Tribunal refuses the application of the Respondent that the Tribunal make an order that the Applicant’s father not represent the Applicant in the proceedings.
...........................[SGD]..................................
Deputy President F Meagher
Catchwords
PRACTICE AND PROCEDURE – interlocutory application that Applicant’s father not represent Applicant in proceedings – conflict of interests – pecuniary interest in outcome of proceedings – interim public guardian order – interlocutory application dismissed
Legislation
Administrative Appeals Act 1975 (Cth) s 2A, 27, 32, 33 and 39
Cases
Campbell-Maruca and Registrar of Indigenous Corporations [2012] AATA 678
Filardo and National Disability Insurance Agency [2020] AATA 1138
Filardo and National Disability Insurance Agency [2020] AATA 4092
Klewer and National Disability Insurance Agency [2019] AATA 4974
REASONS FOR INTERLOCUTORY DECISION
Deputy President F Meagher
BACKGROUND

On 21 August 2019, Mr Kevin Danher made an application for review of an internal review decision of the National Disability Insurance Agency (NDIA) of 25 July 2019, in relation to the funding of Liam Danher’s supports. Although the application was made in Mr Kevin Danher’s (Mr Danher) name, it was made on behalf of his son Liam Danher (the Applicant).
The internal review, the subject of this application, relates to a plan dated 25 July 2019. The internal review decision report states as follows:
You, Kevin and Tracy Danher, Liam’s Father and Mother and Plan Nominees requested an internal review under s.100 of the NDIS Act 2013...
However, from the evidence before the Tribunal, namely a plan nominee form signed only by the Applicant’s mother, it appears that she alone, and not Mr Danher, is a plan nominee.[1]
[1] T25.
At a directions hearing on 6 May 2020, the Respondent foreshadowed an application for an order that Mr Danher not represent the Applicant in the proceedings due to a conflict of interest. At this directions hearing, Mr Danher informed the Tribunal that an application had been made on behalf of the Applicant for legal aid.
On 27 July 2020, the Respondent formally requested that the Tribunal make an order that Mr Danher not represent the Applicant in the proceedings. The Tribunal made directions with respect to the application as follows:
1On or before 10 August 2020, the Respondent will provide the Applicant and Tribunal a copy of written submissions in relation to the potential conflict of interest issue.
2On or before 24 August 2020, the Applicant will provide the Respondent and the Tribunal submissions in reply.
3The matter be listed for a Telephone Directions Hearing on 25 August 2020 at 11:00AM (AEST).
On 2 September 2020, the Parties appeared before the Tribunal and made oral submissions with respect to Mr Danher having a potential conflict of interest in representing the Applicant.
Between the making of the application for review in the Tribunal and the directions hearing on 2 September 2020 the Applicant was represented by his father, Mr Danher.
The Respondent’s submissions
The Respondent’s written submissions of 11 August 2020 included:
5. As a result of his intellectual impairment and pragmatic language disorder, the Applicant is not capable of representing himself in the proceedings. The Agency submits that he is also not capable of managing his own affairs or of giving instructions in these proceedings. The application before the Tribunal (T1) was filed on the Applicant’s behalf by his mother [sic] who is his plan nominee.
6. At the directions hearing in this matter on 6 May 2020, the Agency first foreshadowed an application for an order that the Applicant’s father, Mr Kevin Danher, not represent the applicant in these proceedings due to a conflict of interest. The conflict of interest arises because, if the Applicant is successful in these proceedings, Mr Kevin Danher will be paid by the Agency on a full-time basis to provide support to the Applicant. Thus, Mr Kevin Danher has a direct and significant pecuniary interest in the outcome of the proceedings.
7. At the directions hearing in this matter on 6 May 2020, Mr Kevin Danher indicated that an application had been made on behalf of the Applicant for a grant of legal aid.
8. At that time, the Agency accepted that, if a grant of aid were made and the Applicant was represented in the proceedings by Legal Aid, the issue of Mr Kevin Danher representing the Applicant would fall away.
9. As the Agency now understands it, the Applicant’s application for a grant of legal aid has been refused and Mr Kevin Danher intends to continue to represent the Applicant in these proceedings.
10. In those circumstances, the Agency makes an application for an order that the Applicant’s father, Mr Kevin Danher, not represent the Applicant in these proceedings.
[footnotes omitted]
The Respondent submitted that the Tribunal has the power to make an order that Mr Danher not represent the Applicant on the following bases:
·the principal in Campbell-Maruca and Registrar of Indigenous Corporations [2012] AATA 678 (Campbell-Maruca);
·the broad powers of the Tribunal to control its procedure pursuant to section 33(1) of the Administrative Appeals Act 1975 (Cth) (the AAT Act); and
·affording the applicant procedural fairness.
The Respondent submitted that in accordance with the principal in Campbell-Maruca, the test is whether “if the representative were not excluded, a fair minded, reasonably informed member of the public might reasonably conclude that the proper performance of its review functions that the representative should not act in the proceeding”.[2]
[2] Campell-Macura at [30]; Respondent's Submissions (11 August 2020) at [47].
The Respondent specifically relied upon the statement at paragraph [28] in Campbell-Maruca, as follows:[3]
If the tribunal properly considers that a representative is in such a conflict of interest position, for example, that to permit the representation would mean that the review process could be compromised, then the tribunal has the power to exclude that representative.
[3] Respondent's Submissions (11 August 2020) at [48].
The Respondent drew the Tribunal’s attention to other decisions of the Tribunal it considered relevant including Klewer and National Disability Insurance Agency [2019] AATA 4974 (Klewer) and Filardo and National Disability Insurance Agency [2020] AATA 1138 (Filardo).
The Respondent submitted, as to the application of the test in Campbell-Maruca to the facts:[4]
63. There is an obvious conflict of interest here in that, if the Applicant is successful in these proceedings, Mr Kevin Danher will be paid by the Agency on a full-time basis to provide support to the Applicant. Thus, Mr Kevin Danher has a direct and significant pecuniary interest in the outcome of the proceedings.
64. Therefore, the Agency submits that a fair minded, reasonably informed member of the public might reasonably conclude that the proper performance of the Tribunal’s review functions requires that Mr Kevin Danher should not represent the Applicant in the proceedings.
65. It follows that, in circumstances where Mr Kevin Danher insists on continuing to represent the Applicant, an order that Mr Kevin Danher not represent the Applicant in the proceedings is the only effective remedy to the conflict of interest.
66. Such an order would not preclude another member of the Applicant’s family from representing him in the proceedings, provided that that person would not be paid to care for the Applicant if the Applicant’s application is successful. It would also not preclude a person outside of the Applicant’s family representing him, including a Disability Advocate.
67. The timing of the application is not such that it would preclude the order sought from being made. The matter has not yet been set down for hearing and parties remain in the process of obtaining relevant evidence.
[4] Respondent's Submissions (11 August 2020).
In conclusion the Respondent submitted:[5]
68. Given the position adopted by the Tribunal in Klewer as to the inappropriateness of a parent representing an Applicant in proceedings where that parent had a “vested interest in the outcome” of those proceedings, the Agency’s position is that, as a model litigant, it had a duty to bring the conflict of interest to the Tribunal’s attention and to object to Mr Kevin Danher continuing to represent the Applicant in the circumstances.
69. Having fulfilled its duty in that regard, the Agency accepts that it is a matter for the Tribunal as to who it allows to represent parties in proceedings before it.
70. The Agency has noted its legitimate concern regarding the conflict arising between Mr Danher’s role as the Applicant’s representative and his pecuniary interests (and his likely role as a witness in these proceedings). However, to be clear, it is not the Agency’s position that Mr Danher has engaged in any misconduct by assisting his son in the application. Nor is it the Agency’s intention to exclude Mr Danher entirely from the process.
The Agency recognises the important role that Mr Danher (and the rest of the family) will play in supporting the Applicant in these proceedings, even if an alternative representative is appointed.
[5] Ibid.
The Applicant’s submissions
Mr Danher submitted that he is not a lawyer and had at that point exhausted all avenues available to him to have representation from a lawyer or disability advocate.[6]
[6] Applicant’s submissions filed 25 August 2020.
Mr Danher submitted that he, his wife and the Applicant’s siblings had provided paid support to the Applicant through an arrangement with Disability Services Queensland (approved by the Minister) since January 2015, and that the National Disability Insurance Scheme (NDIS) had approved family members to be “paid supports” since July 2019.[7]
[7] Ibid. It was later established that the Applicant had two other siblings who had not been paid to care for the Applicant.
Mr Danher in his undated written submissions[8] drew the Tribunal’s attention to the details of the Positive Behaviour Support plan for the Applicant (dated 12 July 2020). Mr Danher also referred the Tribunal to the remarks of the Tribunal (differently constituted) in Klewer where the Tribunal found the applicant’s mother had “a vested interest in the outcome of the proceedings”,[9] and submitted that:
The only interest is the love, care and devotion to my disabled son. The opinions of psychiatrists, psychologists, occupational therapists, neurologists and doctors whose evidence is within the T documents held by the tribunal all agree that being supported by his family is the best model for Liam.
The current plan (extended on 24/07/2020) does not adequately provide enough supports and Liam is missing out on the therapies that will assist him to live a better life under the NDIS.
You can be sure that I will act in an honest, courteous and productive capacity to assist both the tribunal and the respondent to address the issues at stake if given the opportunity to represent my son.
[8] Filed in the Tribunal on 25 August 2020.
[9] Klewer at [42].
History of issues regarding representation
On 2 September 2020 the Tribunal held a directions hearing regarding the progress of the matter and in particular the issue of whether Mr Danher should represent the Applicant.
At the directions hearing counsel for the Respondent supplemented the written submissions with the following oral submissions:[10]
MS FISHER: …The first is that the order that we seek is protective in nature. It’s protective firstly of the applicant but it’s also protective of the tribunal’s processes. It’s not intended to be a punishment for misconduct on the part of Mr Danher. It’s not intended to delay these proceedings. And there is no forensic advantage to the respondent in seeking the order. The order will not exclude Mr Danher from appearing as a witness in the proceedings or otherwise assisting and supporting the applicant in the same manner as any other family member.
I just conclude by noting that the written submissions of Mr Danher do not appear to recognise or acknowledge that there is an obvious conflict of interest. And in the respondent’s submission that should be a matter of concern to the tribunal and a matter which it should give some weight in determining whether to make the orders sought.
[10] Transcript (2 September 2020) page 4 lines 32 – 44.
Mr Danher, in response to questions from the Tribunal, advised that he is seeking for all of the Applicant’s family members who had previously been paid to care for the Applicant to be paid.[11] Namely, Mr and Mrs Danher and the Applicant’s brother, Harry and sister, Emily.[12]
[11] Ibid page 5 lines 1 – 11.
[12]
Mr Danher also confirmed that he had received advice that he will not receive legal aid and that he was unable to access a disability advocate as they had “no capacity up here in the far north”.[13] The Tribunal notes the Applicant resides in Far North Queensland.
[13] Ibid page 5 lines 29 – 30.
The Tribunal asked Counsel for the Respondent how it was proposed that the matter would proceed on the basis that all family members are paid carers and there is no disability advocate available.[14] Counsel for the Respondent replied that up until this point the Respondent had not been “clear” that all members of the family were being paid – “that is new information”.[15] Counsel went on to propose that notwithstanding Mr Danher’s advice regarding the position with respect to disability advocates in Far North Queensland, the Respondent would endeavour to make enquiries regarding disability advocacy, including in Brisbane, to see if they have capacity to assist the Applicant so that the application would not be brought to a halt by the new information provided by Mr Danher.[16]
[14]
[15] Ibid page 5 lines 39 – 41.
[16] Transcript (2 September 2020) page 5 lines 43 – 46.
Further, in that regard, the Tribunal confirmed with Respondent’s counsel, that prior to the hearing the Respondent had been proceeding on the basis that there was an alternative family member available to represent the Applicant.[17]
[17] Respondent's Submissions (11 August 2020) at [66]; Transcript (2 September 2020) page 6 lines 36 – 44.
The Tribunal also asked Mr Danher about his understanding of the position in relation to the alleged conflict of interest which may arise when he is representing his son and at the same time advocating for himself and other family members to be paid to care for his son. Mr Danher’s response was:[18]
Yes I understand that, but it’s being allowed and its continued every week to be – continued to be allowed currently, so I don’t see what the issue is.
[18] Transcript (2 September 2020) page 7 lines 38 – 40.
At the hearing on 2 September 2020, the Tribunal indicated it would reserve its decision regarding the conflict of interest pending an update based on the Respondent’s enquiries regarding a disability advocate as there needed to be a way for the Applicant’s case to be progressed given he is completely unable to represent himself. Counsel indicated she was unavailable to appear on the return date proposed but the Respondent indicated it would be represented by the solicitor on the record.[19]
[19] Ibid at page 9 lines 21 – 28.
The matter was resumed on 15 September 2020. The Respondent’s representative solicitor was unavailable when both the Tribunal and a representative of the Respondent attempted to contact him.
At this hearing the Applicant was represented by a disability advocate who sought an adjournment for six weeks as she proposed to make an application to the Queensland Civil and Administrative Tribunal (QCAT) “for the appointment of a legal guardian while the proceedings [in the Tribunal] are on foot, and for a fresh legal aid application to be made as well”.[20]
[20] Transcript (15 September 2020) page 13 lines 11 – 13.
The Tribunal granted the adjournment and, on the basis of the matters set out at paragraphs 21 - 26 above, understood that the Respondent was no longer pressing for a decision that Mr Danher not represent the Applicant.[21]
[21] Transcript (15 September 2020) page 12 lines 13 – 29.
On 23 September 2020 at 12:27PM, the Respondent wrote to the Tribunal stating that it had neither withdrawn its application for an order that Mr Danher not represent the Applicant in the proceedings, nor reached a compromise in that regard. The Respondent set out the history of the matter, in so far as it related to the representation of the Applicant, and pressed for a decision with respect to the application for the following reasons:
a. While the Applicant is currently being represented by “Rights in Action” in the proceedings, in the absence of a decision by the Tribunal, there is nothing to stop Mr Kevin Danher from terminating the relationship with “Rights in Action”, withdrawing his consent for the latter to represent the Applicant and representing the Applicant himself (as occurred in Filardo v NDIA). In those circumstances, the Respondent would be put to the trouble and expense of making a further application;
b. There are other matters on foot before the Tribunal where the Respondent is considering making a similar application. The Respondent would be greatly assisted in that regard by a written decision by the Tribunal in relation to the present application before the Tribunal.
On the same day at 2:32 PM, the Tribunal received a copy of correspondence from the disability advocate representing the Applicant stating as follows:
1. On 15 September 2020, on behalf of the Applicant and in terms of the conflict of interest issue,I advised SM Meagher as follows:
a. That I am a Disability Advocate and not a Legal Advocate;
b. On behalf of the Applicant, I would be arranging for the appointment of a Legal Guardian via QCAT, to address the conflict issue and to ensure that Applicant had legal representation and a right to fair hearing in the proceedings (this strategy was driven by Klewer v NDIA and on the basis that the advocate wished to protect the applicant’s interests and have appointed a litigation guardian - the advocate also wished to ensure that her professional ethics were upheld and there was no perceived conflict of interest in her role);
c. A six week adjournment was consented to and granted to the Applicant on the basis of the advocate making a QCAT Application for the appointment of a Legal Guardian, who would then arrange for a fresh legal aid application to be made on behalf of the Applicant or some other alternative arrangement for legal representation in these proceedings.
In terms of individual disability advocacy/representation for the Applicant, I confirm as follows:
1. On 10 September 2020, I had a meeting with Liam and his family. At that time it was clear that the Applicant did not have capacity. The family was advised that I cannot represent the family – only the Applicant, Liam, on an individual advocacy basis (this is our internal policy and is guided by our funding under the NDAP program for which we receive Federal Funding – see: - also attached is our Client Handbook.
2. That it was in Liam’s best interests for a Legal Guardian to be appointed via QCAT to give effect to legal representation in the AAT proceedings.
3. Our internal policy is that we are always to be on the side of individual and are not their decision maker – however, there is an exception to this rule if we believe the person is at risk or they are a risk to others. The advocate’s objective is to protect the interests of the Applicant.
4. Regarding the Respondent’s comment: ‘While the Applicant is currently being represented by “Rights in Action” in the proceedings, in the absence of a decision by the Tribunal, there is nothing to stop Mr Kevin Danher from terminating the relationship with “Rights in Action”, withdrawing his consent for the latter to represent the Applicant and representing the Applicant himself (as occurred in Filardo v NDIA). In those circumstances, the Respondent would be put to the trouble and expense of making a further application;’ The Applicant’s position is that the advocate does not require the consent of Mr Danher to be the Applicant’s representative or consent around the making of a QCAT application for the appointment of a Legal Guardian. Mr Danher cannot terminate the Applicant’s relationship with the advocate. The worst case scenario is that Mr Danher does not co-operate with the advocate which would make the QCAT application more difficult but, this obstacle can be overcome should it arise.
5. The QCAT Application was drafted up yesterday and the QCAT Report by Medical Professional was sent by email to Mr Danher requesting that he arrange for Liam’s treating doctor to complete and return to my office so that the QCAT application can be made.
It is the Applicant’ position that, at this point in time, it would be premature for any decision to be made by the Tribunal in this present application before the Tribunal on the basis of the matters outlined above. Particularly so as the Applicant has no legal representation at this point in time and has a right to procedural fairness.
(emphasis altered) (errors in the original)

On 13 October 2020, the Tribunal was provided with a copy of an interim order of QCAT dated 30 September 2020 which provided:
1. The Public Guardian is appointed as guardian for Liam Danher for all personal matters.
2. The Tribunal directs the guardian to provide a written account of their actions as guardian to the Tribunal no later than three (3) working days prior to the hearing.
3. This guardianship appointment remains current for three (3) months or, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner.
The interim order was accompanied by correspondence from the Public Guardian to the Applicant’s advocate, dated 7 October 2020, setting out their role in relation to the Applicant, including that:
In making a decision I will talk to [the Applicant] about his views, wishes and needs. I may also speak to yourself, family, friends and service providers about decisions that need to be made on [the Applicant’s] behalf.
On 27 October 2020 the directions hearing adjourned from 15 September was resumed and inter alia further submissions were made with respect to whether an order should be made with respect to Mr Danher not representing the Applicant in the proceedings. In particular the Public Guardian submitted that the issue with respect to a potential conflict of interest with the Applicant’s father acting on the Applicant’s behalf was resolved. The Public Guardian also submitted that no decision should be made with respect to this matter until what is ultimately decided in relation to decision-making for Liam Danher is resolved. The Public Guardian submitted that a decision should not be made which would affect families across Australia managing plans for their children.[22]
[22] Transcript (27 October 2020) page 20 line 34 – page 21 line 2.
Counsel for the Respondent adopted a different position, namely that it had always wished the Tribunal to make a decision regarding the issue of Mr Danher representing the Applicant and that they did not consider that the matter was resolved as there was the possibility that, given the terms of the interim order, Mr Danher might revert to being the Applicant’s legal guardian on 1 January 2021.[23]
[23] Ibid page 19 lines 22 – 38.
Counsel for the Respondent also outlined what the Respondent considered to be further complexities in the case regarding the intersection of the Applicant’s Plan Nominee, currently his mother Ms Tracy Danher, and the appointment of a Public Guardian.[24]
[24] Ibid page 19 lines 40 – 47.
As well, counsel for the Respondent emphasised the utility in the Tribunal making a decision in relation to the “conflict point [which] would be of great assistance, specifically in relation to my client the NDIA but moving forward in relation to all NDIS matters”.[25]
[25] Transcript (15 September 2020) page 20 lines 13 – 15.
In response to questioning from the Tribunal regarding who, in the Respondent’s views, could appropriately represent the Applicant in the situation where the Public Guardian and disability advocate were not available, it appeared that the Respondent’s premise was that there are other family members who are not being paid who could do so, specifically two sisters. It was clarified at this hearing that the Applicant has one brother and three sisters. When Mr Danher referred to seeking ‘all’ of the family members to be paid to care for the Applicant he was referring to those who have been paid to do so in the past, namely Mr and Mrs Danher and the Applicant’s brother, Harry and sister, Emily. The Tribunal noted at hearing and notes at the time of this decision there is no information before it as to the willingness or ability of the Applicant’s two other sisters to act as his representative.[26]
[26] Transcript (27 October 2020) page 21 line 39 to page 22 line 15.
In further submissions, apparently relating to the level of cooperation from Mr Danher in regard to the gathering of further evidence, and presumably therefore going to his suitability to represent the Applicant, the Respondent also noted some difficulties it had encountered in obtaining the occupational therapist report contemplated in earlier directions hearings.[27] The disability advocate explained that those difficulties had arisen due at least in part to a misunderstanding and miscommunication by her.[28]
[27] Ibid page 26 lines 12 – 44.
[28] Ibid page 27 lines 4 – 9; lines 18 – 35.
Since the hearing on 27 October 2020, the following events have occurred:
·the Applicant has a legal representative, as confirmed by way of an email dated 12 November 2020; and
·the Tribunal has been provided with a report from an occupational therapist dated 29 October 2020. That report was provided to the Tribunal on 9 December 2020.
The Tribunal notes that at the hearing on 27 October 2020, it was foreshadowed that the matter would next come before the Tribunal when the Respondent had received the outstanding reports it was seeking.[29] They include the occupational therapist report which has now been received.
[29] Ibid page 29 lines 16 – 18.
They also include a psychiatrist’s report, in respect of which the Tribunal notes that the psychiatrist originally retained by the Respondent is no longer available and an alternative psychiatrist is being sought. At the time of the publishing of these reasons no report from a psychiatrist has been received.
The legislation
In determination of the question in issue, the following sections are relevant. Section 2A of the AAT Act provides:
In carrying out its functions, the Tribunal must pursue the objective of providing a
mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.
Section 27 of the AAT Act relevantly provides:
1Where this Act or any other enactment…provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons…whose interests are affected by the decision.
Section 32 of the AAT Act relevantly provides:
1At the hearing of a proceeding before the Tribunal, the following parties may appear in person or be represented by another person:
(a)A party to a proceeding in a Division other than the Social Services and Child Support Division.
Section 33 of the AAT Act relevantly provides:
1In a proceeding before the Tribunal:
(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal.
Section 39 of the AAT Act relevantly provides:
1…[T]he Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case …
CONSIDERATION
The Tribunal considers its power to control its procedure, pursuant to section 33(1)(a) of the AAT Act, includes the power to make an order that a person not represent another person in proceedings before it.
The question in this matter is whether it should exercise the power, and if so when. The Tribunal notes that as at the time of the publication of this decision there is a solicitor on the record acting for the Applicant. Accordingly, on one view, the application before the Tribunal has no utility at the moment, or while there is alternative representation to Mr Danher on the record for the Applicant.
However, the Tribunal also notes that Mr Danher while not currently representing the Applicant, could, should the Applicant’s representative (being a disability advocate, the Public Guardian or a legal representative) be no longer available for whatever reason, end up representing the Applicant again. In relation to this point the Respondent submits that there is nothing to stop Mr Danher from terminating his relationship with the representative and representing the Applicant himself, as occurred in Filardo.
Summarising and collating the Respondent’s submissions, the Respondent submits that:
·Mr Danher is in a position of conflict of interest if he represents the Applicant as he is seeking, on the Applicant’s behalf, to be paid to provide services to the Applicant; [30]
·Mr Danher seems to be unaware of the significance of being in a position of possible conflict of interest;[31]
·Mr Danher, in representing the Applicant, could compromise the review process;[32]
·if Mr Danher represents the Applicant, the Applicant is not afforded a “reasonable opportunity to present his case”;[33]
·if the Tribunal does not make a decision now the Respondent will be put to the trouble and expense of making a further application;[34] and
·the Respondent would be assisted by a decision and written reasons in relation to this application as it would inform other applications it is considering making to the Tribunal.[35]
[30] Respondent's Submissions (11 August 2020) at [6].
[31] Transcript (2 September 2020) page 6 lines 40 – 44
[32] Respondent's Submissions (11 August 2020) at [28].
[33] Ibid at [40] – [41], [44] – [46].
[34] Respondent’s Submissions (23 September 2020), being an email from the Respondent to the Tribunal.
[35] Ibid.
The disability advocate submits that she represents the Applicant and her relationship with the Applicant cannot be terminated by Mr Danher. She notes that: [36]
The worst case scenario is that Mr Dahner [sic] does not co-operate with the advocate which would make the QCAT application more difficult, but this obstacle can be overcome should it arise’. While the long-term status as to whether there is a Public Guardian is not resolved, and while the Applicant has no legal representation, it would be premature for the Tribunal to decide this question in relation to this matter.
[36] Appellant’s submissions (23 September 2020), being an email from the Applicant’s disability advocate to the Respondent’s representative.
The Public Guardian also submitted that it would be premature to make any decision when the circumstances do not currently arise, when it is not known whether the Public Guardian’s appointment will be extended by QCAT and before the Public Guardian has had an opportunity to obtain legal advice. Furthermore, it appeared that the Public Guardian was concerned regarding a decision which would create a precedent and that they were dealing with a set of circumstances particular to this matter.[37]
[37] Transcript (15 September 2020) page 20 line 34 – page 21 line 12.
The Tribunal observes that like in Filardo, the Respondent’s apprehensions regarding Mr Danher representing the Applicant are understandable. It is acknowledged that Mr Danher, in his undated written submissions seemed unaware of the import of being both the Applicant’s representative in this matter and seeking to be paid to care for him, and when asked by the Tribunal about his understanding of conflict of interest in that context, answered “yes I understand that”, but went on to say that “it’s being allowed”, such that he seemed to think that it should not be a live issue in the matter.
On the basis of those submissions the Tribunal accepts that Mr Danher seems unaware that it is undesirable for him to represent his son in an application where one of the outcomes sought is for him (and other members of his family with whom he resides) to be paid.
Generally, adopting the test upon which the Respondent relied, “ the principal in Campbell-Maruca”, it is accepted that a fair minded, reasonably informed member of the public might reasonably conclude that the performance of the Tribunal’s review function requires that Mr Danher not represent the Applicant due to him seeking to be paid to care for the Applicant as part of the outcome of the review. It follows therefore, that the Tribunal considers that there may be circumstances in which it is appropriate for the Tribunal to make an order such as that sought by the Respondent in this matter.
However, Campbell-Maruca also refers to other considerations not raised by the Respondent. The respondent in Campbell-Maruca advanced an argument that the solicitors for the Applicants in that matter “not be permitted to represent the Applicants” on the grounds that the conduct of the firm will be a material issue in the review proceedings, leading to a potential for conflict of interest, such that a fair minded, reasonably informed member of the public could conclude that the proper administration of justice requires that the solicitors not act for the applicants.
After accepting that the Tribunal had the power to exclude a legal representative, the Honourable Brian Tamberlin QC, Deputy President observed that “[t]he authorities make it clear that the exercise of power to exclude a legal representative of choice is an exceptional one which must be exercised with caution to ensure there is sufficient evidence or material to support the exclusion”.[38] He also decided not to exclude the legal representative as there was no evidence before him at the stage of the proceedings at which the application was brought regarding “any improper conduct”.[39] Here, counsel for the Respondent expressly states that “it is not the Agency’s position that Mr Danher has engaged in any misconduct in assisting his son in the application”.[40]
[38] Campbell-Maruca at [32].
[39] Ibid at [34].
[40] Respondent's Submissions (11 August 2020) at [70].
While the Honourable Brian Tamberlin QC, Deputy President observed in Campbell-Maruca that it was the actions of the directors of the Aboriginal Corporation (the applicants in the matter) which were the subject of the substantive proceedings, rather than the conduct of the legal representative,[41] he also adopted some of the relevant principals from Kallinicos v Hunt [2005] 65 NSW LR 561 as follows:[42]
[41] Campbell-Maruca at [35].
[42] Ibid at [17]-[18].
17. At [76] His Honour summarised his conclusions and the relevant points made for present purposes were as follows:
·the court always has an inherent jurisdiction to restrain solicitors from acting, as an incident of its inherent jurisdiction over its officers so as to control its process in aid of the administration of justice.
·the test to be applied in exercising this jurisdiction is whether a fair minded and reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
·the jurisdiction must be regarded as exceptional and must be exercised with caution.
·due weight should be given to the public interest in a litigant not being deprived of a lawyer of his or her choice without due cause.
·the timing of the application may be relevant in that cost, inconvenience or impracticality of acquiring lawyers to cease to act may provide a reason for refusing to make such an order.
18. The above principles provide some useful guidance to the Tribunal in the present case, notwithstanding that the Tribunal does not have the inherent jurisdiction attached to superior State courts. Legal practitioners appearing in the Tribunal are not in any sense “officers” of the Tribunal. In the present case, the power to exclude must be found, whether expressly or impliedly, in the AAT Act which establishes the Tribunal and delineates its powers and functions.
Therefore the Tribunal considers that the Respondent’s concerns must be weighed against the situation that currently exists here, namely that if the Public Guardian’s appointment is not extended and the disability advocate is for some reason unable to represent the Applicant, there is currently no information before the Tribunal as to the availability and willingness of someone who is suitable, on the Respondent’s case, to represent the Applicant. Given his disability the Applicant cannot represent himself and all the members of his family currently involved in his care are being paid. Accordingly, if the Tribunal were to make an order now that Mr Danher not represent the Applicant in these proceedings and the situation arises where the Public Guardian’s appointment is not extended and the disability advocate ceases to represent the Applicant, the Applicant could be left with no way whatsoever of progressing the matter. Taking that into consideration, the Tribunal considers that the preeminent consideration in this matter at this time is to ensure that the Applicant has a means of pursuing his review rights which in this case necessitate him having a representative.
The Tribunal also does not consider that a decision in this matter would assist the Respondent in respect of other matters on foot before the Tribunal. Each matter must be decided on its own facts and circumstances. This is highlighted by reference to the decisions made in Filardo. There were two interlocutory decisions made in the matter of Filardo – one made on 21 April 2020 (Filardo, as cited above) and the second on 9 October 2020.[43] The Respondent in this matter referred the Tribunal to the first interlocutory decision in Filardo which confirmed that the applicant’s father could represent the applicant in circumstances where the applicant was seeking funding for specialist disability accommodation at an apartment at premises owned by him and his wife, and in respect of which he told the Tribunal that the specialist disability accommodation would be provided by an incorporated association which he had founded and of which he was the sole officeholder.[44] The Respondent sought to distinguish Filardo on the basis that the respondent in that matter had not made a formal interlocutory application with respect to representation by the applicant’s father and the applicant’s father was his nominee.[45]
[43] Filardo and National Disability Insurance Agency [2020] AATA 4092 (Filardo [No. 2]).
[44] Filardo at [4] – [5].
[45] Respondent's Submissions (11 August 2020) at [62].
The second interlocutory decision (Filardo No. 2) was made after the provision of written submissions and the last directions hearing in that matter. In the second interlocutory decision the Tribunal reached a different conclusion, namely that the applicant’s father be excluded from representing the applicant. However, that decision noted that ‘a lot had changed since that [first] interlocutory decision was made’[46].
[46] Filardo[No. 2] at [3].
They included:
·the NDIA had suspended the applicant’s father appointment as Plan Nominee;[47]
[47] Filardo[No. 2] at [4].
·the applicant’s mother had become far more involved in the applicant’s care. The applicant’s behavioural therapist had reported that the applicant, while mistrustful of his father, seemed to be trusting of his mother;[48]
[48] Ibid at [8(l)].
·the applicant’s mother had been appointed his financial administrator by the Victorian Civil and Administrative Tribunal;[49]
·the Tribunal was satisfied that the applicant was capable of making decisions regarding supports under the NDIS;[50]
·the applicant’s views had been ascertained, and they included that his father not be consulted by his NDIS support systems, and that the applicant had been reported to make statements suggesting he had concerns about his father’s actions in relation to himself;[51]
·the Tribunal did not consider the applicant’s father could provide assistance to it, based on him becoming easily confused and unable to grasp new concepts, and limitations with respect to communication via technology;[52]
·the Tribunal became aware that the applicant’s father had misled the Tribunal and the respondent regarding whether the applicant was homeless at any time, and that in fact the applicant had an ongoing home with his mother until she died, at which stage the specialist support coordinator would “handle” him; [53]
·the applicant’s treating occupational therapist had ventured an opinion regarding the applicant’s future ‘support advocacy’, the outcome of which is not before the Tribunal in that matter;[54]
·the Tribunal had become aware that the applicant’s father had been paid ’thousands of dollars‘ for ‘respite care‘ for the applicant, however the applicant’s care had not changed responsive to that;[55]
·the Tribunal observed that the applicant’s father had repeatedly failed to comply (without adequate explanation, and in some cases, no explanation) with the Tribunal’s directions;[56]
·the Tribunal considered that the application in that matter had been brought by the applicant’s father purely for the purpose of his financial gain;[57] and
·the Tribunal considered that the applicant’s father was unwilling and unable to act in the applicant’s interests over his own.[58]
[49] Ibid at [8(b)].
[50] Ibid at [8(d)].
[51] Ibid at [8(e)].
[52] Ibid at [8(f)].
[53] Ibid at [8(g)].
[54] Ibid at [8(m)].
[55] Filardo[No. 2] at [12].
[56] Ibid at [13].
[57] Ibid at [14].
[58] Ibid at [15].

Further, the Respondent has submitted that the matter of Klewer involves similar facts and that, as such, supports a finding that Mr Danher should not represent the Applicant in the proceedings before the Tribunal. The Tribunal considers that, despite the submission of the Respondent, the facts in Klewer are limited to the specific circumstances of that case and should be viewed as distinguishable from those in this matter.
In Klewer the Tribunal appointed a guardian ad litem to represent the applicant in his application before the Tribunal. The factors that led the Tribunal to appoint a guardian ad litem included that the applicant’s representative “did not appear to understand the inappropriateness of her insistence on representing her son given she would, if his [a]pplication were successful, be the recipient of the funds from the [r]espondent, her role as a witness, and the need to ensure procedural fairness”.[59] Other contributing factors were that the applicant’s representative was “constantly interrupt[ing], denigrat[ing] the [r]espondent’s representatives and impli[ng] that by merely listening to the [r]espondent’s arguments” the Tribunal “was exhibiting bias”[60]. She was also observed as “rude, obdurate and at times threatening”.[61] Additionally, the applicant’s representative was found by the New South Wales Supreme Court to be a vexatious litigate and had been convicted of assault in relation to other proceedings’.[62] The Tribunal in Klewer found that ‘[i]n all of the circumstances I do not believe, if there is to be procedural fairness, that [the Tribunal] can allow this matter to proceed in the absence of a [guardian ad litem] being appointed to protect the best interests of the applicant and to ensure that his voice is properly heard'.[63] This interlocutory decision was the subject of an appeal to the Federal Court of Australia, which was dismissed for want of competency.[64] It was also the subject of an application for judicial review in the Federal Court of Australia on the point of whether the Tribunal had the power to appoint a guardian ad litem.[65]
[59] Klewer at [25].
[60] Ibid at [10]
[61] Ibid at [25].
[62] Klewer at [26].
[63] Ibid at [43].
[64] Klewer v National Disability Insurance Agency [2020] FCA 161.
[65] Klewer v National Disability Insurance Agency (Legal Representative) [2020] FCA 1430 and Klewer v National Disability Insruance Agency (Revocation Application) [2020] FCA 1830, dismissed 2 December 2020.
CONCLUSION
In the circumstances, the Tribunal agrees with the submissions made by the disability advocate and Public Guardian that it would be premature to make an order that Mr Danher not represent the Applicant. This is not to say that there may not be a time at which it is necessary or appropriate to make such an order. However, the possible trouble and expense of the Respondent having to make this application again is outweighed, in this instance, by the Applicant’s need to be represented by someone. The Tribunal does not consider that the circumstances of this matter are such that any decision would amount to a precedent – each matter needs to be decided on its own facts and circumstances.
Ultimately the Tribunal is of the view that in this matter, until there is clarity regarding the appointment of the Public Guardian, the greatest risk is of the Applicant being left with no ability to progress his matter at all, and that accordingly, at this point in time, it would be premature to make an order that Mr Danher not represent the Applicant.
INTERLOCUTORY DECISION
For the reasons outlined above, the Tribunal refuses the application of the Respondent that the Tribunal make an order that Mr Danher not represent the Applicant in the proceedings.

1.

2. I certify that the preceding 67
(sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President F Meagher

………………[SGD]…………………..
Associate
Dated: 2 March 2021

Date of Hearing: 27 October 2020

Final Submissions Received:

Representative for the Applicant:

23 September 2020

Ms P Skirving, Office of the Public Guardian
Ms M Levasseur, Rights in Action Inc.

Counsel for the Respondent: Ms M Fisher

Ibid page 5 lines 8 – 11. It was later established that the Applicant has two other sisters who have not being

paid to care for the Applicant (see Transcript (27 October 2020) page 21 lines 39 – 44).

Ibid page 5 lines 32 – 37. At this point in time the evidence before the Tribunal indicated that all of the

Applicant’s siblings were paid carers.